Friday, 27 January 2012

The Court of Special Pleading

The ECHR is not an appeal court in the way the Supreme Court is. Appeals procedures in both criminal and civil justice systems ensure that only the most significant and relevant cases, those likely to lead to a change in either the law or judicial process, reach the old Middlesex Guildhall for careful, lengthy and expert consideration.

But the ECHR is not an appeal court. With a backlog of over 150,000 cases, it is a Court of Special Pleading, grown from an Age of Entitlement. Wherever governments make rationing decisions - rationing Welfare housing, or access to tax-funded medical services, or tax-funded education - there will always be those unhappy with their ration, who want more. While national governments can ignore the whining of self-interest, the ECHR opens its doors to allow them to make a case as to why they should be treated differently to everyone else. Wherever governments design and deliver systems of criminal justice the ECHR opens its door to those who want better treatment than their fellow convicts, who want jury decisions overturned on grounds not forming part of their national law, who want special consideration and personal preferment. It stinks.

Don't mistake me; I think there is a role for a pan-national court to make recommendations to national governments to change their domestic laws. Scandinavian socialist eugenics, the birth-cradle of Nazism, Toynbee's Utopian Fabianopolis, gave us the compulsory sterilisation of the mentally retarded until the 1970s. However, the court's power should be limited to recommendation. Its decisions cannot be binding on democratic nations making their own legitimate decisions on the rationing of Welfare or the penalty for any particular crime.

We once had a Court of Special Pleading ourselves; called the Court of Requests it was empowered to make decisions at variance with the Common Law, to challenge the law. It eventually collapsed under the weight of backlog of cases, as everyone sought special pleading. The ECHR may be headed the same way.

6 comments:

Unfortunately "Human Rights" are now being used as a cloak for all sorts of special interests/groups to hide behind, or advance their minority cause at the disadvantage of the majority.But we do need something or somewhere where we, the individual, can appeal to when the government oversteps the line.

Ah - who's been watching BBC4 (surprisingly in this case - well, broken clocks and all that) or reading the Spectator concerning the excellent programmes by Jonathan Meades on the French?

JM - quoted by Dellers in the Spectator - described the ECHR as follows: "It ought to be called the European Court of Special Pleading . . . where people go to line the pockets of the pious shysters of the human rights industry". Who could disagree?